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2011/08/17 Dekra-Lite Industries FY11/12 street light pole banner/brackets installation PROFESSIONAL SERVICES AGREEMENT (Dekra-Lite Industries) THIS AGREEMENT for Professional Services ("Agreement") is made this 17th day of August, 2011 ("Effective Date") by and between the CITY OF MENIFEE ("City") and DEKRA- LITE INDUSTRIES ("Contractor') (together sometimes referred to the "Parties"). Section 1. 'SERVICES. Subject to the terms and conditions set forth in this Agreement, Contractor shall provide to City the services and supplies as described in each of the Contractor's Proposal to each Task Assignment provided in writing by the City's Contract Administrator. The Contractor shall provide a fee breakdown and a not to exceed fee for each Task Assignment. Such work shall be provided at the time and place and in the manner specified in the Task Assignment. In the event of a conflict in or inconsistency between the terms of this Agreement and Task Assignments, this Agreement shall prevail. 1.1 ,Term of Services. The term of this Agreement shall begin on the Effective Date and shall end on June 30, 2012. The term of the Agreement may be otherwise terminated or extended as provided for in Section 8. The time provided to Contractor to complete the services required by this Agreement shall not affect the City's right to terminate the Agreement, as provided for in Section 8. 1.2 Standard of Performance. Contractor shall perform all services required pursuant to this Agreement in the manner and according to the standards observed by a competent practitioner of the profession in which Contractor is engaged in the geographical area in which Contractor practices its profession and to the sole satisfaction of the Contract Administrator, as identified in Section 10.7. 1.3 Assignment of Personnel. Contractor shall assign only competent personnel to perform services pursuant to Agreement. In the event that City, in its sole discretion, at any time during the term of this Agreement, desires the reassignment of any such persons, Contractor shall, immediately upon receiving ,notice from City of such desire of City, reassign such person or persons. 1.4 Time. Contractor shall devote such time to the performance of services pursuant to this Agreement as may be reasonably necessary to satisfy Contractor's obligations hereunder. 1.5 Authorization to Perform Services. The Contractor is not authorized to perform any services or incur any costs whatsoever under the terms of this Agreement until receipt of authorization from the Contract Administrator. Section 2. COMPENSATION. City hereby agrees to pay Contractor a sum not to exceed TWENTY FIVE THOUSAND DOLLARS ($25,000) based on the services and the rates contained in Exhibit A and Exhibit B. In the event of a conflict between this Agreement and Exhibit A and Exhibit B, regarding the amount of compensation, this Agreement shall prevail. City shall pay Contractor for services rendered pursuant to this Agreement at the time and in the Professional Services Agreement with Dekra-Lite Industries I of 14 manner set forth herein. The payments specified below shall be the only payments from City to Contractor for., services rendered pursuant to this Agreement. Contractor shall submit all invoices to City in the manner specified herein. Except as specifically authorized in advance by City, Contractor shall not bill City for duplicate services performed by more than one person. 2.1 Invoices. Contractor shall submit invoices during the term of this Agreement, based on the cost for services performed. Invoices shall contain the following information: • Number of Banners installed • Number of Brackets installed • Banner Locations (as directed from City) • Date of installation • The Contractor's signature 2.2 Monthly Payment. City shall make monthly payments, based on invoices received, for services satisfactorily performed, and for authorized costs incurred. City shall have 30 days from the receipt of an invoice that complies with all of the requirements above to pay Contractor. 2.3 Total Payment. City shall not pay any additional sum for any expense or cost whatsoever incurred by Contractor in rendering services pursuant to this Agreement. City shall make no payment for any extra, further, or additional service pursuant to this Agreement. In no event shall Contractor submit any invoice for an amount in excess of the maximum amount of compensation provided above either for a task or for the entire Agreement, unless the Agreement is modified in writing prior to the submission of such an invoice. 2.4 Reimbursable Expenses. Reimbursable expenses are included within the maximum amount of the contract. 2.5 Payment of Taxes. Contractor is solely responsible for the payment of employment taxes incurred under this Agreement and any federal or state taxes. 2.6 Payment upon Termination. In the event that the City or Contractor terminates this Agreement pursuant to Section 8, the City shall compensate the Contractor for all outstanding costs and reimbursable expenses incurred for work satisfactorily completed as of the date of written notice of termination. Contractor shall maintain adequate logs and timesheets in order to verify costs incurred to that date. Section 3. FACILITIES AND EQUIPMENT. Except as otherwise provided, Contractor shall, at its sole cost and expense, provide all facilities and equipment necessary to perform the services required by this Agreement. City shall make available to Contractor only physical facilities such as desks, filing cabinets, and conference space, as may be reasonably necessary for Contractor's use while consulting with City employees and reviewing records and the Professional Services Agreement with Dekra-Lite Industries 2 of 14 information in possession of the City. The location, quantity, and time of furnishing those facilities shall be in the sole discretion of City. In no event shall City be required to furnish any facility that may involve incurring any direct expense, including but not limited to computer, long- distance telephone of other communication charges, vehicles, and reproduction facilities. Section 4. INSURANCE REQUIREMENTS. Before beginning any work under this Agreement, Contractor, at its own cost and expense, shall procure the types and amounts of insurance checked below and provide Certificates of Insurance, indicating that Contractor has obtained or currently maintains insurance that meets the requirements of this section and which is satisfactory, in all respects, to the City. Contractor shall maintain the insurance policies required by this section throughout the term of this Agreement. The cost of such insurance shall be included in the Contractor's compensation. Contractor shall not allow any subcontractor to commence work on any subcontract until Contractor has obtained all insurance required herein for the subcontractor(s) and provided evidence thereof to City. Verification of the required insurance shall be submitted and made part of this Agreement prior to execution. 4.1 Workers' Compensation. Contractor shall, at its sole cost and expense, maintain Statutory Workers' Compensation Insurance and Employer's Liability Insurance for any and all persons employed directly or indirectly by Contractor. The Statutory Workers' Compensation Insurance and Employer's Liability Insurance shall be provided with limits of not less than ONE MILLION DOLLARS ($1,000,000.00) per accident. In the alternative, Contractor may rely on a self- insurance program to meet those requirements, but only if the program of self- insurance complies fully with the provisions of the California Labor Code. .Determination of whether a self-insurance program meets the standards of the Labor Code shall be solely in the discretion of the Contract Administrator. The insurer, if insurance is provided, or the Contractor, if a program of self-insurance is provided, shall waive all rights of subrogation against the City and its officers, officials, employees, and authorized volunteers for loss arising from work performed under this Agreement. 4.2 Commercial General Automobile Liabilitv Insurance. 4.2.1 General requirements. Contractor, at its own cost and expense, shall maintain commercial general and automobile liability insurance for the term of this Agreement in an amount not less than ONE MILLION DOLLARS ($1,000,000.00) per occurrence, combined single limit coverage, for risks associated with the work contemplated by this Agreement. If a Commercial General Liability Insurance or an Automobile Liability form or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to the work to be performed under this Agreement or the general aggregate limit shall be at least twice the required occurrence limit. Such coverage shall include but shall not be limited to, protection against claims arising from bodily and personal injury, including death resulting therefrom, and damage to property resulting from activities contemplated under this Agreement, including the use of owned and non-owned automobiles. Professional Services Agreement with Dekra-Lite Industries 3 of 14 4.2.2 Minimum scope of coverage. Commercial general coverage shall be at least as broad as Insurance Services Office Commercial General Liability r occurrence form CG 0001 or'GL 0002 (most recent editions) covering comprehensive General Liability and Insurance Services Office form number GL 0404 covering Broad Form Comprehensive General Liability. Automobile coverage shall be at least as broad as Insurance Services Office Automobile Liability form CA 0001 (ed. 12/90) Code 8 and 9. No endorsement shall be attached limiting the coverage. 4.2.3 Additional requirements. Each of the following shall be included in the insurance coverage or added as a certified endorsement to the policy: a. The insurance shall cover on an occurrence or an accident basis, and not on a claims-made basis. b. Any failure of Contractor to comply with reporting provisions of the policy shall not affect coverage provided to City and its officers, employees, agents, and volunteers. 4.3 Professional Liability Insurance. 4.3.1 General requirements. Contractor, at its own cost and expense, shall maintain for the period covered by this Agreement professional liability insurance for licensed professionals performing work pursuant to this Agreement in an amount not less than ONE MILLION DOLLARS ($1,000,000) covering the licensed professionals' errors and omissions. Any deductible or self-insured retention shall not exceed $150,000 per claim. 4.3.2 Claims-made limitations. The following provisions shall apply if the professional liability coverage is written on a claims-made form: a. The retroactive date of the policy must be shown and must be before the date of the Agreement. b. Insurance must be maintained and evidence of insurance must be provided for at least five years after completion of the Agreement or the work, so long as commercially available at reasonable rates. C. If coverage is canceled or not renewed and it is not replaced with another claims-made policy form with a retroactive date that precedes the date of this Agreement, Contractor must provide extended reporting coverage for a minimum of five years after completion of the Agreement or the work. The City shall have the right to exercise, at the Contractor's sole cost and expense, any Professional Services Agreement with Dekra-Lite Industries 4 of 14 I extended reporting provisions of the policy, if the Contractor cancels or does not renew the coverage. d. A copy of the claim reporting requirements must be submitted to the City prior to the commencement of any work under this Agreement. 4.4 All Policies Requirements. 14.4.1 Acceptability of insurers. All insurance required by this section is to be placed with insurers with a Bests' rating of no less than A:VII. 4.4.2 Verification of coverage. Prior to beginning any work under this Agreement, Contractor shall furnish City with Certificates of Insurance, and upon request, :complete certified copies of all policies, including complete certified copies of all endorsements. All copies of policies and certified endorsements shall show the signature of a person authorized by that insurer to bind coverage on its behalf. 4.4.3 Notice of Reduction in or Cancellation of Coverage. A certified endorsement shall be attached to all insurance obtained pursuant to this Agreement stating that coverage shall not be suspended, voided, canceled by either party, or reduced in coverage or in limits, except after thirty (30) days' prior written notice by certified, mail, return receipt requested, has been given to the City. In the event that any coverage required by this section is reduced, limited, cancelled, or materially affected in any other manner, Contractor shall provide written notice to City at Contractor's earliest possible opportunity and in no case later than ten (10) working days after Contractor is notified of the change in coverage. 4.4.4 Additional insured; primary insurance. City and its officers, employees, agents, and authorized volunteers shall be covered as additional insureds with respect to each of the following: liability arising out of activities performed by*or on behalf of Contractor, including the insured's general supervision of Contractor; products and completed operations of Contractor, as applicable; premises owned, occupied, or used by Contractor; and automobiles owned, leased, or used by the Contractor in the course of providing services pursuant to this Agreement. The coverage shall contain no special limitations on the scope of protection afforded to City or its officers, employees, agents, or authorized volunteers. A certified endorsement must be attached to all policies stating that coverage is primary insurance with respect to the City and its officers, officials, employees and volunteers, and that no insurance or self- insurance maintained by the City shall be called upon to contribute to a loss under the coverage. Professional Services Agreement with Dekra-Lite Industries 5 of 14 4.4.6 Deductibles and Self-insured Retentions. Contractor shall disclose to and obtain the approval of City for the self-insured retentions and deductibles before beginning any of the services or work called for by any term of this Agreement. During the period covered by this Agreement, only upon the prior express written authorization of Contract Administrator, Contractor may increase such deductibles or self-insured retentions with respect to City, its officers, employees, agents, and volunteers. The Contract Administrator may condition approval of an increase in deductible or self-insured retention levels with a requirement that Contractor procure a bond guaranteeing payment of losses and related investigations, claim administration, and defense expenses that is satisfactory in all respects to each of them. 4.4.6 Subcontractors. Contractor shall include all subcontractors as insureds under its policies or shall furnish separate certificates and certified endorsements for each subcontractor. All coverages for subcontractors shall be subject to all of the requirements stated herein. 4.4.7 Variation. Contract Administrator may approve in writing a variation in the foregoing insurance requirements, upon a determination that the coverage, scope, limits, and forms of such insurance are either not commercially available, or that the City's interests are otherwise fully protected. 4.5 Remedies. In addition to any other remedies City may have if Contractor fails to provide or maintain any insurance policies or policy endorsements to the extent and within the time herein required, City may, at its sole option, exercise any of the following remedies, which are alternatives to other remedies City may have and are not the exclusive remedy for Contractor's breach: • Obtain such insurance and deduct and retain the amount of the premiums for such insurance from any sums due under the Agreement; • Order Contractor to stop work under this Agreement or withhold any payment that becomes due to Contractor hereunder, or both stop work and withhold any payment, until Contractor demonstrates compliance with the requirements hereof; and/or • Terminate this Agreement. Professional Services Agreement with Dekra-Lite Industries 6 of 14 Section 5. INDEMNIFICATION (a) Indemnification for Other than Professional Liability. Other than in the performance of professional services and to the full extent permitted by law, Consultant shall indemnify, protect, defend and hold harmless City, and any and all of its employees, officials and agents from and against any liability (including liability for claims, suits, actions, arbitration proceedings, administrative proceedings, reguiatory proceedings, losses, expenses or costs of any kind, whether actual, alleged or threatened, including attorneys fees and costs, court costs, interest, defense costs, and expert witness fees), where the same arise out of, are a consequence of, or are in any way attributable to, in whole or in part, the performance of this Agreement by Consultant or by any individual or entity for which Consultant is legally liable, including but not limited to officers, agents, employees or sub-contractors of Consultant. (b) The provisions of this section do not apply to claims occurring as a result of City's sole or active negligence. The provisions of this section shall not release City from liability arising from gross negligence or willful acts or omissions of City or any and all of its officials, employees and agents. Section 6. STATUS OF CONTRACTOR. 6.1 -independent Contractor. At all times during the term of this Agreement, Contractor shall be an independent contractor and shall not be an employee of City. City shall have the right to control Contractor only insofar as the results of Contractor's services rendered pursuant to this Agreement and assignment of personnel pursuant to Subparagraph 1.3; however, otherwise City shall not have the right to control the means by which Contractor accomplishes services rendered pursuant to this Agreement. Notwithstanding any other City, state, or federal policy, rule, regulation, law, or ordinance to the contrary, Contractor and any of its employees, agents, and subcontractors providing services under this Agreement shall not qualify for or become entitled to any compensation, benefit, or any incident of employment by City, including but not limited to eligibility to enroll in the California Public Employees Retirement System (PERS) as an employee of City and entitlement to any contribution to be paid by City for employer contributions and/or employee contributions for PERS benefits. Section 7. LEGAL REQUIREMENTS. 7.1 Governing Law. The laws of the State of California shall govern this agreement. 7.2 Compliance with Applicable Laws. Contractor and any subcontractor shall comply with all applicable local, state and federal laws and regulations applicable to the performance of the work hereunder. 7.3 Licenses and Permits. Contractor represents and warrants to City that Contractor and its employees, agents, and any subcontractors have all licenses, permits, qualifications, and approvals of whatsoever nature which are legally required to practice their respective professions. Contractor represents and Professional Services Agreement with Dekra-Lite Industries 7 of 14 warrants to City that Contractor and its employees, agents, any subcontractors shall, at their sole cost and expense, keep in effect at all times during the term or ,this Agreement any licenses, permits, and approvals that are legally required to practice their respective professions. In addition to the foregoing, Contractor and any subcontractors shall obtain and maintain during the term of this Agreement valid Business Licenses from City. Section 8. TERMINATION AND MODIFICATION. 8.1 Termination. City may cancel this Agreement at any time and without cause upon written notification to Contractor. Contractor may cancel this Agreement upon 30 days' written notice to City and shall include in such notice the reasons for cancellation. In the event of termination, Contractor shall be entitled to compensation for services performed to the effective date of termination; City, however, may condition payment of such compensation upon Contractor delivering to City any or all documents, photographs, computer software, video and audio tapes, and ,other materials provided to Contractor or prepared by or for Contractor or the City in connection with this Agreement. 8.2 Extension. City may, in its sole and exclusive discretion, extend the end date of this Agreement beyond that provided for in Subsection 1.1. Any such extension shall require a written amendment to this Agreement, as provided for herein. Contractor understands and agrees that, if City grants such an extension, City shall have no obligation to provide Contractor with compensation beyond the maximum amount provided for in this Agreement. Similarly, unless authorized by the Contract Administrator, City shall have no obligation to reimburse Contractor for any otherwise reimbursable expenses incurred during the extension period. 8.3 Amendments. The parties may amend this Agreement only by a writing signed by all the parties. 8.4 Assignment and Subcontracting. City and Contractor recognize and agree that this Agreement contemplates personal performance by Contractor and is .based upon a determination of Contractor's unique personal competence, experience, and specialized personal knowledge. Moreover, a substantial inducement to City for entering into this Agreement was and is the professional reputation and competence of Contractor. Contractor may not assign this Agreement or any interest therein without the prior written approval of the Contract Administrator. Contractor shall not subcontract any portion of the performance contemplated and provided for herein, other than to the subcontractors noted in the proposal, without prior written approval of the Contract Administrator. In the event that key personnel leave Contractor's employ, Contractor shall notify City immediately. Professional Services.Agreement with Dekra-Lite Industries 8 of 14 8.5 Survival. All obligations arising prior to the termination of this Agreement and all provisions of this Agreement allocating liability between City and Contractor shall survive the termination of this Agreement. le 8.6 Options upon Breach by Contractor. If Contractor materially breaches any of the terms of this Agreement, City's remedies shall include, but not be limited to, any or all of the following: 8.6.1 Immediately terminate the Agreement; 8.6.2 Retain the plans, specifications, drawings, reports, design documents, and any other work product prepared by Contractor pursuant to this Agreement; 8.6.3 Retain a different contractor to complete the work described in Exhibit A not finished by Contractor; or 8.6.4 Charge Contractor the difference between the cost to complete the work described in Exhibit A that is unfinished at the time of breach and the amount that City would have paid Contractor pursuant to Section 2 if Contractor had completed the work. Section 9. KEEPING AND STATUS OF RECORDS. 9.1 Records Created as Part of Contractor's Performance. All reports, data, maps, models, charts, studies, surveys, photographs, memoranda, plans, studies, specifications, records, files, or any other documents or materials, in electronic or any other form that Contractor prepares or obtains pursuant to this Agreement and that relate to the matters covered hereunder shall be the property of the City. Contractor hereby agrees to deliver those documents to the City upon termination of the Agreement. It is understood and agreed that the documents and other materials, including but not limited to those described above, prepared pursuant to this Agreement are prepared specifically for the City and are not necessarily suitable for any future or other use. City and Contractor agree that, until final approval by City, all data, plans, specifications, reports and other documents are confidential and will not be released to third parties without prior written consent of both parties unless required by law. 9.2 Contractor's Books and Records. Contractor shall maintain any and all ledgers, books of account; invoices, vouchers, canceled checks, and other records or documents evidencing or relating to charges for services or expenditures and disbursements charged to the City under this Agreement for a minimum of three (3) years, or for any longer period required by law, from the date of final payment to the Contractor to this Agreement. 9.3 Inspection and Audit of Records. Any records or documents that Section 9.2 of this Agreement requires Contractor to maintain shall be made available for inspection, audit, and/or copying at any time during regular business hours, upon Professional Services Agreement with Dekra-Lite Industries 9 of 14 oral or written request of, the City. Under California Government Code Section 8546.7, if the amount of public funds expended under this Agreement exceeds Ten Thousand Dollars ($10,000.00); the Agreement shall be subject to the -examination and audit of the State Auditor, at the request of City or as part of any audit of the City, for a period of three (3) years after final payment under the Agreement. Section 10. MISCELLANEOUS PROVISIONS. 10.1 Attorneys' Fees. If either party to this Agreement brings any action, including an action for declaratory relief, to enforce or interpret the provision of this Agreement, the prevailing party shall be entitled to reasonable attorneys' fees in addition to any other relief to which that party may be entitled. The court may set such fees in the same action or in a separate action brought for that purpose. 10.2 Venue. In the event that either party brings any action against the other under this Agreement, the parties agree that trial of such action shall be vested exclusively in Riverside County. 10.3 Severability. If a court of competent jurisdiction finds or rules that any provision of this Agreement is invalid, void, or unenforceable, the provisions of this Agreement not so adjudged shall remain in full force and effect. The invalidity in whole or in part of any provision of this Agreement shall not void or affect the validity of any other provision of this Agreement. 10.4 No Implied Waiver of Breach. The waiver of any breach of a specific provision of this Agreement does not constitute a waiver of any other breach of that term or any other term of this Agreement. 10.5 Successors and Assigns. The provisions of this Agreement shall inure to the benefit of and shall apply to and bind the successors and assigns of the parties. 10.6 City Contract Administration. This Agreement shall be administered by City Senior Manager, Community Improvement, Outreach and Communication, Rob Johnson ("Contract Administrator"). All correspondence shall be directed to or through the Contract Administrator or his or her designee. 10.7 Notices. Any written notice to Contractor shall be sent to: Dekra-Lite Industries Attn: Gabriel Adriance 3102 Alton Avenue Santa Ana, CA 92704 800.436.3627 Professional Services Agreement with Dekra-Lite Industries 10 of 14 Any written notice to City shall be sent to the Contract Administrator with a copy to: City Clerk City of Menifee 29714 Haun Road Menifee, CA. 92586 10.8 Integration. This Agreement, including the proposal attached hereto and incorporated herein as Exhibit A and Exhibit B represents the entire and integrated agreement between City and Contractor and supersedes all prior negotiations, representations, or agreements, either written or oral. 10.9 Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be an original and all of which together shall constitute one agreement. Professional Services Agreement with Dekra-Lite Industries 11 of 14 The Parties have executed this Agreement as of the Effective Date. CITY OF MENIFEE CONTRACTOR William A. Rawlings, City Mana r (:::� a-Cite Indu tri Its: ��;r"i kl.e- Dekra-Lite Industries Its: Attest: Kathy Bennett, City Clerk Appro Zt �Fq: m: 1 Josep etcher, Interim City attorney i i Professional Services Agreement with Dekra-Cite Industries 12 Of 14 i EXHIBIT A SCOPE OF SERVICES Contractor recognizes and agrees that this Agreement is for the purpose of establishing a contractual relationship between the City of Menifee and the Contractor for the production and installation of street light pole banners/brackets throughout the City of Menifee. Work will include production and installation of banner and brackets on street light poles and emergency call out services. The procedure for assigning work is set forth as follows: 1. The City Manager or designee shall submit to Contractor a written request for work. The request for work shall include the description of the work to be completed, the time for the completion, and the plans and specifications, if any, of the work. 2. Within five (5) business days of the date of the request for work, Contractor shall respond in writing to the request for work and advise City Manager or designee whether it can perform the work and specify the cost of material which will be required and the estimated cost of labor and equipment necessary to complete the work in accordance with the labor and equipment rates set forth in Exhibit B to this Agreement. 3. In the event emergency work is required, the City Manager or designee may transmit request for work orally to the Contractor. As soon as practical following the emergency, the Contractor and City Manager or designee shall in good faith confirm in writing the scope of the emergency work undertaken. 4. Upon acceptance of the Contractor's response by the City Manager or his designee, the Contractor shall proceed with the work. The performance of the work shall be pursuant to the terms of this Agreement. a. 'Banner production i. Produce 30" x 90", 13 oz., two-sided, matte vinyl, UVA/UVB street banners from images provided by the City b. Banner and bracket installation i. Installation on designated street light poles as assigned by the City c. Banner change out i. As requested by the City d. Emergency Call-Outs i. Broken banners or bracket that might need to be immediately (within reason) removed and or replaced Professional Services Agreement with Dekra-Lite Industries 13 of 14 EXHIBIT B RATE SHEET Prices below were obtained through a quote from Dekra-Lite Industries, Gabriel Adriance, on May 12, 2011. BANNERS 30" X 90", 130Z. VINYL, UVA/UVB RATED $70.65 EA SET FEE NONE MINIMUM ORDER NONE BRACKET (2 PER BANNER) $64.35 EA INSTALLATION COST (NEW BANNER & BRACKET) $32.00 EA REMOVAL OF BANNER & BRACKET $11.00 EA CHANGE OUT OF BANNER AT EXISTING LOCATION $31.00 EA TOTAL BRACKET BANNER MANNER COMPANY MATERIALS SIZE COST SET UP FEE INSTALL COST COST COST Dekra-lite 13oz vinyl $70.65 no $231.35 Industries UVA/.UVB 30"x 90" 1 $64.35 1 None 1 $32.00 minimum Professional Services Agreement with Dekra-Lite Industries 14 of 14